THE CLERGY-PENITENT PRIVILEGE: THE ROLE OF CLERGY IN PERPETUATING AND PREVENTING DOMESTIC VIOLENCE

Domestic violence occurs at alarming rates in all socioeconomic levels, races, locations, sexual orientations, and professions. Domestic violence occurs at similar frequencies among religious and non-religious individuals. Clergy play an important role in religious communities. The clergy-penitent privilege was created to protect the relationship between clergy and communicant and prevents clergy from testifying about spiritual communications. However, the privilege is currently an absolute privilege which is unnecessary and hurts victims and survivors of domestic violence. Additionally, the statutorily written privilege is not aligned with the application and practice of the privilege. Practice indicates clergy tend to desire to testify and view the privilege very narrowly. A qualified clergy-penitent privilege would strike a more appropriate balance between protecting religious freedom and obtaining justice. Furthermore, clergy-penitent privileges often conflict with mandatory child abuse reporting laws. Abrogating the privilege as to child abuse will compel clergy to comply with mandatory reporting laws and protect vulnerable children

The Attorney-Client Privilege and Information Disclosed to an Attorney with the Intention That the Attorney Draft a Document To Be Released to Third Parties: Public Policy Calls for at Least the Strictest Application of the Attorney-Client Privilege

The attorney-client privilege is the oldest evidentiary privilege known to the common law. It exists to encourage clients to openly communicate with their attorneys. Some commentators, however, have questioned the value of the privilege and called for its elimination. This policy debate, though unlikely to influence typical privilege disputes, is important when the application of the attorney-client privilege is unclear. One example is when a client conveys information to her attorney with the intent that the attorney draft a document to be released to a third party. This Note seeks to shed light on the arguments for and against the application of the attorney-client privilege to this scenario, and concludes that public policy calls for a strict application of the privilege

Should Public Relations Experts Ever Be Privileged Persons?

This Comment addresses the issue of whether, and under what circumstances, a lawyer’s communications with a public relations expert, whose advice is only valuable to the extent that it is communicated fully and freely with the attorney, will be protected by the attorney-client privilege. This Comment focuses on the role of public relations firms in the criminal law context, where constitutional concerns often arise. The author begins by laying out the history and background of the attorney-client privilege, and how the defense lawyer’s role has changed as a result of the rise of mass media. The Comment then goes on to explore the recent case law from the Second Circuit involving public relations firms and their applicability to the attorney-client privilege. From these cases the author synthesizes what she believes are the relevant factors used to decide whether the privilege attaches to public relations firms. Applying these factors the Comment argues that in orderr for our system of adjudication to be fair and just, we must permit attorneys to engage the media through assistance of public relations experts to whom the attorney-client privilege reaches

The Battle to Define the Scope of Attorney-Client Privilege in the Context of Insurance Company Bad Faith: A Judicial War Zone

[Excerpt] The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law. \u27 The privilege is [d]eeply rooted in public policy, and plays a \u27vital role\u27 in the administration of justice. As such, the privilege is traditionally deemed worthy of maximum legal protection \u27 and it remains one of the most carefully guarded privileges and is not readily to be whittled down. The privilege has come under assault in the insurance bad faith context in recent decades resulting in a whittling down of the privilege for insurance companies as a target party. Over the past couple of decades, various courts have rendered significant decisions regarding implied waiver of the privilege in the insurance bad faith context. These courts have seemingly set a minimal threshold for waiver that is the functional equivalent of a per se waiver rule, a rule which is inconsistent with the strength of the protection normally provided the attorney-client privilege in other contexts involving non-target parties. In contrast, Arizona, one of the jurisdictions which previously appeared to create such a per se rule, may be, with recent intermediate court decisions, redefining the battle for the scope of the attorney-client privilege in the insurance bad faith context. The Arizona decisions on this issue serve as a case study regarding the analytic gymnastics courts have engaged in to create implied waiver in the insurance bad faith context. However, these decisions may also set the stage for the judicial combatants. Will the battle result in a return to the more conservative protections of the privilege provided in other contexts or will it end with a broad per se implied waiver in the insurance context? In Part I of this article, the attorney-client privilege is discussed generally, as well as specifically, in the context of insurer bad faith. In Part I.A, a general overview of the attorney-client privilege is presented. In Part I.B, express and implied waiver of the attorney-client privilege are discussed. The courts have disagreed on the general contours of the test to be applied in determining whether an implied waiver of the attorney-client privilege has occurred, and what should be the precise formulation for that determination. The courts have also disagreed as to when a client may be deemed to have injected privileged attorney-client communications into a case, causing an implied waiver. There are three general approaches to determine whether a litigant has impliedly waived the attorney-client privilege. Each of these approaches is discussed. In Part I.C, the article discusses general principles regarding insurance bad faith and how the direct assertion of the advice-of counsel defense results in waiver of the attorney-client privilege in that context. The nature and scope of the advice-of-counsel defense is explored. In Part II, the battle over the changing boundaries of waiver by implication is examined by comparing the case authority supporting expansion versus the development of three published decisions from the courts of Arizona. The discussion starts in Part IIA, where the expansion of waiver by implication is discussed. Part II.B examines a decision from the Arizona Supreme Court which followed the trend of substantial expansion of the waiver-by-implication rule and then examines two subsequent decisions from the Arizona Court of Appeals which have applied the Arizona Supreme Court precedent to reach two very different and arguably contradictory results. The first of these appellate decisions arguably takes the expansion of implied waiver to the next level-a per se rule triggering automatic waiver as a result of defending a bad faith case on a subjective belief of acting in good faith. The second appellate decision, however, takes a step back from the ledge and seeks to limit the prior ruling to its facts rather than creating a per se rule in those circumstances. Part II.C seeks to synthesize and define the battle in Arizona over the scope of implied waiver, discussing the chilling effect continued expansion of implied waiver can have upon the advice that insurance companies seek from counsel and how the recent decision from Arizona may serve as a warm front to thaw the chill that has been in the air for the last two decades

Our Very Privileged Executive: Why the Judiciary Can (and Should) Fix the State Secrets Privilege

This paper was first presented at the Temple Law Review Symposium on Executive Power. In Reynolds v. United States, the Supreme Court shaped the state secrets privilege (the Privilege) as one akin to that against self-incrimination. In recent litigation, the government has asserted the Privilege in motions for pre-discovery dismissal, thus transforming the Privilege into a form of executive immunity. This Paper argues that courts must step in to return the Privilege to a scope more in keeping with its status as a form of evidentiary privilege. After reviewing the doctrinal origins of the Privilege, the Paper explores three types of issues implicated by the government\u27s invocation of the Privilege. The government, in calling for judicial deference to executive assertions of the Privilege, often realies on (1) separation of powers arguments or on (2) arguments sounding in institutional competence. Courts are often swayed by such arguments and thus give relatively little consideration to the (3) conflict of interest inherent in the government\u27s assertion of the Privilege and the impact of the successful invocation of the Privilege on the rights of individual litigants. The Paper then proceeds to address arguments that Congress can provide a check on executive abuse of the Privilege. The Paper argues that, assuming that Congress has constitutional authority, it lacks the will or the institutional competence to provide a proper solution to the problems raised by the Privilege. Instead, the Paper contends that, since courts created the Privilege, courts are best positioned to rein it in. The final section of the Paper provides examples drawn from case law illustrating mechanisms whereby courts can protect state secrets while also giving litigants adverse to the government their day in court

The Attorney-Client Privilege and Information Disclosed to an Attorney with the Intention That the Attorney Draft a Document To Be Released to Third Parties: Public Policy Calls for at Least the Strictest Application of the Attorney-Client Privilege

The attorney-client privilege is the oldest evidentiary privilege known to the common law. It exists to encourage clients to openly communicate with their attorneys. Some commentators, however, have questioned the value of the privilege and called for its elimination. This policy debate, though unlikely to influence typical privilege disputes, is important when the application of the attorney-client privilege is unclear. One example is when a client conveys information to her attorney with the intent that the attorney draft a document to be released to a third party. This Note seeks to shed light on the arguments for and against the application of the attorney-client privilege to this scenario, and concludes that public policy calls for a strict application of the privilege

Q&A: Privilege and Allyship

Question: I’ve always wondered about this: as a white, heterosexual male person who cares about the way minorities and marginalized populations are treated, what gives me the right to feel offended or call someone out on something they say that’s a definite gray area when I don’t belong to that group? I believe that as a privileged individual it is my responsibility to advocate as an ally but it would conversely be an exercise of my privilege if I were to be the one to decide what is and isn’t offensive to a whole group of people I don’t belong to. So my question is: what is the moral implication and the power dynamic of a privileged person being offended on a minority’s behalf? Is it right? Is privileged? Is it audacious? I need to know! [excerpt

The intersection of race, sexual orientation, socioeconomic status, trans identity, and mental health outcomes

The present study examined patterns in trans individuals’ multiple identities and mental health outcomes. Cluster 1 (socioeconomic and racial privilege; n = 239) was characterized by individuals who identified as trans women or cross-dressers, lesbian, bisexual, or questioning; had associates degrees; reported household incomes of $60,000 or more a year; and were non-Latino White. Cluster 2 (educational privilege; n = 191) was characterized by individuals who identified as trans men or genderqueer, gay, or queer; had a bachelor’s degree; reported household incomes of$10,000 or less a year; and were people of color. There was a pattern of individuals in Cluster 1 who identified with two privileged identities (identifying as White and having higher household incomes), whereas individuals in Cluster 2 identified only formal education as a privilege. Individuals in Cluster 2 reported statistically significant levels of anxiety. Implications of these results for future research and clinical practice are examined.Accepted manuscrip

Refinement for Administrative Policies

Flexibility of management is an important requisite for access control systems as it allows users to adapt the access control system in accordance with practical requirements. This paper builds on earlier work where we defined administrative policies for a general class of RBAC models. We present a formal definition of administrative refinnement and we show that there is an ordering for administrative privileges which yields administrative refinements of policies. We argue (by giving an example) that this privilege ordering can be very useful in practice, and we prove that the privilege ordering is tractable